5
Why all the Fuss “The jury found [Anderson] guilty on the basis [of this statement]” Houston Chronicle – June 25, 2002

6
Why all the Fuss $604m Compensatory Damages $604m Compensatory Damages $850m Punitive Damages $850m Punitive Damages “Morgan Stanley executives had clearly misled the court and the plaintiffs as to the existence of s. “ “Morgan Stanley executives had clearly misled the court and the plaintiffs as to the existence of s. “ Fourth District Reverses Based on Measurement of Damages Fourth District Reverses Based on Measurement of Damages

11
Old Rules-New Tricks Discoverability Amendments to Discovery Rules Amendments to Discovery Rules Five Year Project What are the differences between paper and electronic documents? What are the differences between paper and electronic documents? Do these differences create problems that can or should be addressed by changes to the FRCP? Do these differences create problems that can or should be addressed by changes to the FRCP? If there are problems that rulemaking can address, what rules can be crafted to suit that purpose? If there are problems that rulemaking can address, what rules can be crafted to suit that purpose?

14
Old Rules-New Tricks Discoverability "Rules 26(b) and 34 for the Federal Rules of Civil Procedure instruct that computer- stored information is discoverable under the same rules that pertain to tangible, written materials.“ Rowe Entm't, Inc. v. The William Morris Agency (S.D.N.Y. May 9, 2002). "Rules 26(b) and 34 for the Federal Rules of Civil Procedure instruct that computer- stored information is discoverable under the same rules that pertain to tangible, written materials.“ Rowe Entm't, Inc. v. The William Morris Agency (S.D.N.Y. May 9, 2002).

19
Old Rules-New Tricks Discoverability Amendments to Discovery Rules Amendments to Discovery Rules Rules 33 and 34 Rules 33 and 34 Can produce electronically stored information as response Can produce electronically stored information as response May be required to explain how to access data May be required to explain how to access data Can request information to be produced in specific format Can request information to be produced in specific format Form normally maintained Form normally maintained Reasonably usable Reasonably usable Only one form Only one form

20

21
Discoverability "The law is clear that data in computerized form is discoverable even if paper 'hard copies' of the information have been produced.... [T]oday it is black letter law that computerized data is discoverable if relevant." Anti-Monopoly, Inc. v. Hasbro, Inc., No. 94 Civ. 2120, 1995 WL , 1995 U.S. Dist. LEXIS 16355, at *1 (S.D.N.Y. Nov. 3, 1995). "The law is clear that data in computerized form is discoverable even if paper 'hard copies' of the information have been produced.... [T]oday it is black letter law that computerized data is discoverable if relevant." Anti-Monopoly, Inc. v. Hasbro, Inc., No. 94 Civ. 2120, 1995 WL , 1995 U.S. Dist. LEXIS 16355, at *1 (S.D.N.Y. Nov. 3, 1995).

23
Discoverability “(1) The extent to which the request is specifically tailored to discover relevant information; (2) The availability of such information from other sources; (3) The total cost of production, compared to the amount in controversy; (4) The total cost of production, compared to the resources available to each party; (4) The total cost of production, compared to the resources available to each party; (5) The relative ability of each party to control costs and its incentive to do so; (6) The importance of the issues at stake in the litigation; and (7) The relative benefits to the parties of obtaining the information." Zubulake v. UBS Warburg, 217 F.R.D. 309, 320 (S.D.N.Y. 2003).

25
Discoverability Cost Shifting Plaintiff ordered to convert a simulation program and data on a nine-track magnetic tape if the defendant agreed to "pay all the reasonable and necessary costs that may be associated with the manufacture of the computer-readable tape." In re Air Crash Disaster at Detroit Metro. Airport on Aug. 16, 1987, 130 F.R.D. 634, 636 (E.D. Mich. 1989). Plaintiff ordered to convert a simulation program and data on a nine-track magnetic tape if the defendant agreed to "pay all the reasonable and necessary costs that may be associated with the manufacture of the computer-readable tape." In re Air Crash Disaster at Detroit Metro. Airport on Aug. 16, 1987, 130 F.R.D. 634, 636 (E.D. Mich. 1989).

37
Discoverability Privilege Rule 26(b)(5)(B) Rule 26(b)(5)(B) safe harbor for inadvertent production safe harbor for inadvertent production Evid. Rule 502 Evid. Rule 502 Safe harbor if Safe harbor if Inadvertent production Inadvertent production Reasonable precautions to prevent disclosure Reasonable precautions to prevent disclosure Production in government investigation not general waiver Production in government investigation not general waiver

38
Discoverability Privilege Solution One: “Claw back” agreement Solution One: “Claw back” agreement Parties agree inadvertent production does not constitute waiver Parties agree inadvertent production does not constitute waiver Protocol in place for identification and return of privileged information Protocol in place for identification and return of privileged information Solution Two: “Quick peek” agreement Solution Two: “Quick peek” agreement Requesting party given access to unreviewed documents to designate responsive material Requesting party given access to unreviewed documents to designate responsive material Privilege claims made as to designated material Privilege claims made as to designated material

39
Discoverability Privilege – Inadvertent Waiver Reasonableness of Precautions Reasonableness of Precautions Amount of Time to Correct Error Amount of Time to Correct Error Scope of Production Scope of Production Extent of Inadvertent Disclosure Extent of Inadvertent Disclosure Overriding Interest of Fairness and Justice Overriding Interest of Fairness and Justice

45
Old Rules-New Tricks Spoliation All parties “are obligated to take appropriate measures to preserve documents and information... reasonably calculated to lead to the discovery of admissible evidence and likely to be requested during discovery.” All parties “are obligated to take appropriate measures to preserve documents and information... reasonably calculated to lead to the discovery of admissible evidence and likely to be requested during discovery.” Amended Rule 37(f) – routine and good faith operation of system not sanctionable. Amended Rule 37(f) – routine and good faith operation of system not sanctionable.

46
Old Rules-New Tricks Spoliation Preserve backup tapes for key employees or others with relevant information Preserve backup tapes for key employees or others with relevant information Retain both current and archived backup tapes identified as potentially relevant Retain both current and archived backup tapes identified as potentially relevant Catalog documents created after the duty attaches in a separate file for easy collection and review Catalog documents created after the duty attaches in a separate file for easy collection and review Take mirror images of computer hard drives. Take mirror images of computer hard drives. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003)

47
Spoliation Retention Policy “[D]ocument retention policies... do not trump the Federal Rules of Civil Procedure or requests by opposing counsel.... [E]xecution of a document retention policy that is at odds with the rules governing the conduct of litigation does not protect [the party] from a finding of intentional destruction.“ Trigon Ins. Co. v. United States, 204 F.R.D. 277, 289 (E.D. Va. 2001). “[D]ocument retention policies... do not trump the Federal Rules of Civil Procedure or requests by opposing counsel.... [E]xecution of a document retention policy that is at odds with the rules governing the conduct of litigation does not protect [the party] from a finding of intentional destruction.“ Trigon Ins. Co. v. United States, 204 F.R.D. 277, 289 (E.D. Va. 2001).

50
Suspend routine document destruction or alteration required under document retention policy. Suspend routine document destruction or alteration required under document retention policy. Involve counsel in determining both issues relevant to the cause and that may lead to relevant discovery. Involve counsel in determining both issues relevant to the cause and that may lead to relevant discovery. Send an order, with periodic reminders thereafter, to the appropriate employees, including those in information technology, to preserve all documentation relevant to the litigation. The order should include the issues involved in the litigation and remind the employees that the data retention policy no longer applies to these issues. Send an order, with periodic reminders thereafter, to the appropriate employees, including those in information technology, to preserve all documentation relevant to the litigation. The order should include the issues involved in the litigation and remind the employees that the data retention policy no longer applies to these issues. Spoliation Suggested Actions

51
Obtain copies of all hard copy documents. Obtain copies of all hard copy documents. Develop working knowledge of the technology systems to determine storage media, locations and length of storage. This knowledge should also include whether the system overwrites deleted information. Depending upon the complexity of the system, this step may also require consulting a computer forensics expert to determine an effective strategy for preserving and maintaining electronic data. Develop working knowledge of the technology systems to determine storage media, locations and length of storage. This knowledge should also include whether the system overwrites deleted information. Depending upon the complexity of the system, this step may also require consulting a computer forensics expert to determine an effective strategy for preserving and maintaining electronic data. Designate an employee to be responsible for the collection and protection of relevant documents and information. Designate an employee to be responsible for the collection and protection of relevant documents and information.

52
Spoliation Standard the party with control over the evidence had a duty to preserve it at the time of destruction; the party with control over the evidence had a duty to preserve it at the time of destruction; the records were destroyed with a "culpable state of mind"; and the records were destroyed with a "culpable state of mind"; and the destroyed evidence was "relevant" to the party's claim or defense and a reasonable trier of fact might find that it would support that claim or defense. the destroyed evidence was "relevant" to the party's claim or defense and a reasonable trier of fact might find that it would support that claim or defense.

57
Admissibility What to Record Lorraine v. Markel Am. Ins. Co. (D. Md. May 4, 2007) "Date, time, and place of collection or receipt. "Date, time, and place of collection or receipt. The name of the individual who collected or received the evidence. The name of the individual who collected or received the evidence. A description of what was obtained, including media-specific information. A description of what was obtained, including media-specific information. Media type, standard, and manufacturer. Media type, standard, and manufacturer.

58
Admissibility What to Record All movement of evidence (evidence transfer) and the purpose of the transfer. All movement of evidence (evidence transfer) and the purpose of the transfer. Physical (visual) inspection of evidence. Physical (visual) inspection of evidence. Procedures used in collecting and analyzing the data. Procedures used in collecting and analyzing the data. Date and time of check-in and check-out of media from secure storage." Date and time of check-in and check-out of media from secure storage."

61
Old Rules-New Tricks Admissibility "although the legal requirements for admissibility of downloaded documents may not be well established, a party's statement that 'I downloaded these pages from the internet' is probably not sufficient to authenticate a downloaded document." State ex rel. Leslie v. Ohio Hous. Fin. Agency, 2003-Ohio-6560 (Ohio Ct. App. Dec. 9, 2003) at ¶ 70 n.1. "although the legal requirements for admissibility of downloaded documents may not be well established, a party's statement that 'I downloaded these pages from the internet' is probably not sufficient to authenticate a downloaded document." State ex rel. Leslie v. Ohio Hous. Fin. Agency, 2003-Ohio-6560 (Ohio Ct. App. Dec. 9, 2003) at ¶ 70 n.1.

62
Old Rules-New Tricks Admissibility Web address and path of the document; Web address and path of the document; Date and title of the document; Date and title of the document; Date the document was downloaded or accessed; and Date the document was downloaded or accessed; and Sworn statement to the court that the copy had not been altered from that found on the website. Sworn statement to the court that the copy had not been altered from that found on the website. State ex rel. Leslie v. Ohio Hous. Fin. Agency, 2003-Ohio-6560 (Ohio Ct. App. Dec. 9, 2003)

63
Old Rules-New Tricks Admissibility The Court holds no illusions that hackers can adulterate the content of any Web- site from any location at any time." (emphasis in original). St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 775 (S.D. Tex. 1999). The Court holds no illusions that hackers can adulterate the content of any Web- site from any location at any time." (emphasis in original). St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 775 (S.D. Tex. 1999).

64
Old Rules-New Tricks Admissibility "[A]ny evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception." St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 775 (S.D. Tex. 1999). "[A]ny evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception." St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 775 (S.D. Tex. 1999).

65
Old Rules-New Tricks Admissibility Fed. R. Civ. P. 803(6) permits the admission of computer business records if a party introduces a sufficient foundation. Hardison v. Balboa Ins. Co., 4 Fed. Appx. 663 (10th Cir. 2001). Fed. R. Civ. P. 803(6) permits the admission of computer business records if a party introduces a sufficient foundation. Hardison v. Balboa Ins. Co., 4 Fed. Appx. 663 (10th Cir. 2001). trial court should have admitted an from the plaintiff to the defendant that was written within the scope of the author's employment as a party admission. Sea-Land Servs., Inc. v. Lozen Int'l, LLC, 285 F.3d 808 (9th Cir. 2002). trial court should have admitted an from the plaintiff to the defendant that was written within the scope of the author's employment as a party admission. Sea-Land Servs., Inc. v. Lozen Int'l, LLC, 285 F.3d 808 (9th Cir. 2002).